Befuddling City Response to Measure M Kerfuffle Raises Concern of Brown Act Violation
A confusing internal memo released by the City Clerk’s office raises troubling concerns of whether the City Council violated the Brown Act in deciding whether to approve joining a lawsuit challenging the ballot language of Measure M.
The memo dated September 7, 2016 is signed by City Attorney John Fellows and was written to the City Clerk. The contents of the memo contradict previous information provided to the public by the City Clerk’s office. In the memo, Fellows asserts the City Council approved the Measure M lawsuit in closed session at the July 26, 2016 meeting. In a prior communication, the City Clerk had provided minutes from the June 28, 2016 meeting as evidence of the City Council’s approval.
The contents of the memo are captured in full below:
On July 26, 2016, the Torrance City Council met in Closed Session under Council Agenda Item 14(c) to discuss anticipated litigation between Torrance and a number of other South Bay cities as plaintiffs and the Los Angeles County Metropolitan Transportation Authority as defendant. By a 6-0 affirmative vote (Councilman Rizzo absent), the Council authorized staff to participate in work on joint educational outreach concerning the Measure and to join in a lawsuit with other South Bay cities challenging the language of the Measure. Final action was not taken that evening by the Torrance City Council, since the makeup of cities who would participate in the lawsuit was not clear at the time, nor had cost-sharing or non-disclosure agreements been finalized. The lawsuit was filed on August 26, 2016. The filing of the lawsuit was reported in the Daily Breeze on August 29. In response to the Daily Breeze report, the City Clerk received an inquiry on September 06, asking when the City Council met and approved participation in the Measure M litigation. The City Council did not meet on either August 30 or September 6, so there was no opportunity to announce publicly the Council’s action of July 26.
With final action now having occurred and a request for disclosure having been made, pursuant to California Government Code Section 54957.1(a)(2), the City is now required to make the public disclosure outlined above.
In the memo, Fellows first indicates that the matter was discussed at July 26 meeting, but that final action was not taken. Oddly, later in the same memo he acknowledges that final action did occur. He also claims that the action taken at the meeting was not disclosed because there was no opportunity to do so.
California Government Code Section 54957, otherwise known as the Brown Act, requires that approval given to legal counsel to enter into litigation during closed session “shall be reported in open session at the public meeting during which the closed session is held.” No such disclosure was made at the July 26, 2016 meeting. In fact, the minutes from that meeting indicate that, “No formal action was taken on any matter considered in closed session.” The video from that meeting corroborates the statement from the minutes.
Fellows conflicting memo raises the question of why whatever action taken by the Council at the July 26 meeting was not disclosed at that same meeting to the public per the Brown Act. If “final” action did not occur at that meeting, as Fellows at one point infers, when did it occur? To meet the Brown Act requirements, the Council would have had to meet again either in closed or open session to take additional action on the issue from what was approved at the July 26 meeting.
It appears from the record that such subsequent approval on the final action taken was neither discussed or provided.